The new DC Circuit opinion invalidating President Obama's recess appointments to the National Labor Relations Board (NLRB) is what we in the trade like to call "a big deal." Indeed, this promises to be the most significant separation-of-powers case in years, and the Justices may well be forced to take this up on an expedited basis. If the panel opinion stands, then everything that the NLRB has done in the past year would be invalid (because the required quorum was absent).

The first thing to say about the panel opinion is that it is broad--way too broad. I agree with Judge Griffith that the panel should not have addressed the issue of whether a vacancy must "arise" during the intersession recess in order for the President to exercise his Article II power. The panel also could have issued a narrower holding (e.g., that the pro forma sessions held by the Senate during its adjournments meant that the NLRB recess appointments were invalid.)

Having said that, I am convinced that the opinion is correct as a textual and as an original matter when it says that "recess" means only the time between congressional sessions, not an "adjournment" in the middle of a session. Nevertheless, there are some other considerations that the panel did not credit, but that might matter when the case is appealed.

1. Since 1947, the Senate and the Executive Branch have operated on the understanding that most intrasession recess appointments are fine. One person's gloss on the text is someone's else setting aside of the text, but practice must count for something. Nevertheless, there are precedents (most notably INS v. Chadha) that reject a functional interpretation of checks-and-balances.

2. This is the type of issue where judicial intervention is unnecessary. The Senate and the White House are more than capable of defending their turf, and whatever balance they strike is good enough. But that argument cannot be squared with many of the Court's precedents on executive-congressional disputes.

3. The panel opinion could unsettle a lot of law. This poses a pragmatic problem, but one that could be finessed in a variety of ways if necessary. (UPDATE: The opinion also calls many of the rules issued by the Consumer Financial Protection Board into question, as its Director was recess appointed in the same way and the statute creating the agency says that a Director must be in place for certain purposes.)

4. If the holding stands, future presidents will be driven to give more power to staff members who are unaccountable and do not need Senate confirmation. Thus, the panel's claim that its decision will limit the Executive Branch is dubious. Get ready for more labor "czars" if the NLRB cannot function.

In the end, though, my view is that this decision will be affirmed, though maybe on narrower grounds.

Perhaps our yodeler, in his simple minded fashion, might inform us of what this means:

" ... when the Senate is unavailable, ...."

And of course there are the many precedents that Gerard mentions.

As to Gerard's thinking that the decision will be affirmed, "though on narrower grounds" perhaps precedents may come into play and the narrow decision may be to look forward and not back, except as to the case before the Court.

From an originalist or textualist standpoint, consider the times with travel difficulties for the Senate being available back then compared with today, when in an emergency advances in technology could promptly make the Senate "available." Since SCOTUS read the militia clause out of the Second Amendment in Heller (5-4), it could fudge what is a recess and let the President play when the Senate is obstinate and makes itself unavailable as a practical matter, which brings us full circle to the filibuster in the Senate, whereby the filibuster rule in effect makes the Senate "unavailable."

like SCOTUS (5-4) in 2008 with Heller ignoring the introductory "Militia Clause" in the Second Amendment after more than 200 years?

Perhaps there is a constitutional "statute of limitations" or laches principle to be applied here. If the decision is upheld in its entirety as Brett wishes, this will be fodder for the legal profession that Brett professes to despise.

"like SCOTUS (5-4) in 2008 with Heller ignoring the introductory "Militia Clause" in the Second Amendment after more than 200 years?"

Yeah, I was a bit disappointed in them about that: The introductory clause makes it clear the right is to own weapons suitable for militia purposes, (As the Court got right in Miller) but that was too much for them to stomach, they crafted a more politically correct substitute right.

Still better than the minority, who wanted to ignore the "right of the people" part...

ignores the "well-regulated" phrase in the Militia Clause. Perhaps Brett does so since he is a Second Amendment absolutist, which is contra to the 5-4 Court decision in Heller.

See Lawrence Rosenthal and Adam Winkler's "The Scope of Regulatory Authority Under the Second Amendment" available via SSRN at:

http://ssrn.com/abstract=2205520

It's only 9 short pages, carefully reflecting Heller and was written after the Newtown shootings and Obama's proposals on certain gun controls, with the authors' views on whether such proposals pass constitutional muster under Heller.

If we are going back to Original language, it should be noted that the Constitution talks about "advise and consent" not "confirmation" or "approval" or "ratification". The founders certainly knew that qui tacet consentire or silence implies consent. Combining this view of Recess appointments as intersession, one might just as well suggest that if the Senate fails to vote on an appointment made during the Session, then at the end of the Session (at the Recess or start of the new session) they have given their tacit consent through silence. This flips the consequence of filibuster since now 41 Senators can force confirmation rather than block it. It is a radical change in interpretation, but arguably no more radical than this decision.

This decision could have simply said that the Senate no longer goes on Recess and therefore the Recess appointment no longer applies. Instead, it goes back to the original distinction between Session and Recess, which brings additional issues in focus.

For the first few decades Congress met only part of the year, finished their business, and then had a long Recess where they went back home. Travel to the capital was long and hard, so it was not reasonable to call the Senate back for minor items like appointments.

By the same token, the Senate would not have gone on Recess until it finished all the business at hand, including voting on any nominations. So if we go back to original understandings, the Senate would never have ended a Session without offering advice and consent. Only the modern year round Session with no Recess makes that a possibility.

The logic of this decision is that there was a period of "advice and consent" (the Session) followed by an intersession Recess during which the President could appoint temporary officers while the Senate was unavailable.

The decision requires not only that the appointment be made during the Recess, but also that the vacancy occur during the Recess. That only makes sense if all prior appointments had been cleared up before the Recess. To hold a nomination pending across the Recess because it occurred during the Session, but to fill vacancies occurring during the Recess (and therefore later in time than the ones being held) make no logical sense at all.

So if we go back to the original understanding that the Recess occurred only between sessions, we also confront the original understanding that nominations are not held over from Session to Session because the Senate has to act on them before the Session ends. Of course, without a Recess the end of Session is not as important as it used to be, and maybe this original understanding no longer applies.

However, the decision to use "Consent" rather than some other word makes it possible to claim that maybe it really does apply. Certainly all of the Founding Fathers were aware of the principle that Silence Implies Consent, and in the unimaginable (at the time) event that the Senate chose not to act during the Session they could certainly imagine that principle would apply.

"The decision requires not only that the appointment be made during the Recess, but also that the vacancy occur during the Recess. That only makes sense if all prior appointments had been cleared up before the Recess."

I believe the basic idea here is that nominations require Senate approval to take effect, and a limited exception has been provided where the matter is urgent, and the Senate is not available.

If the vacancy happened while the Senate WAS available, and the President didn't bother to nominate somebody before the recess, it must be that the President didn't consider filling the vacancy to be urgent.

Likewise, if a timely nomination were made, and the Senate didn't act on it before the recess, it must be that the Senate didn't consider filling the vacancy to be urgent.

So, in neither case would it be a suitable occasion to allow an emergency procedure to be used to fill the vacancy.

In any event, the Senate is unavailable for such a short time these days, (And the President actually has the constitutional power to order them to convene in emergencies!) that the recess appointment clause is properly understood to be a quaint anachronism, like the 3rd amendment: Still valid law, but relevant to a circumstance which scarcely ever arises anymore.

Before Brett's tries to further fudge the issue, this is what Article II, Section 3, includes regarding his last comment:

" ... he [the President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; ...."

Yes, yes, I do tend to assume people have already read the Constitution, so I don't have to link to every clause I mention. There might have been some point to your comment had the actual text contradicted what I said.

Point is, anyway, that this isn't the 18th century, when calling the Senate back together during recess might have taken months. If a vacancy goes unfilled for more than a couple WEEKS today, it's because either the President or the Senate didn't think filling it quickly was important. We'll get by just fine with the recess clause scaled back to the scope actually ratified, and the President forced to return to getting Senate approval for his nominees.

Brett, I don't assume that you have read and understand provisions in the Constitution that you cavalierly refer to. You seem to suggest that the "power" of the President under the quoted portion of Section 3 of Article II would permit for calling the Senate into session to address a nominee's appointment. Assuming that the Senate would have to assemble, how might the "extraordinary" Occcasion be described to survive challenge? In any event, if the Senate were to assemble as a result of such a call, the Senate need not take action and presumably the filibuster rule would be available.

Brett's reference to " ... a quaint anachronism ... " regarding the recess appointments clause might apply to the Second Amendment's introductory "Militia" clause. [Note that the Constitution as amended does not specify in text an individual right of self-defense. And what constitutes self-defense varies from state to state, whether common law or statutory, and has changed over time. Query: does the Second Amendment protect the use by an individual of his hands and arms, without weaponry, for self-defense? Or with a shod foot? Or with a knife? Or with a 2 x 4?]

One other functional concern (I don't want to add to the post) is that the Recess Appointment Clause was not written with filibusters in mind. Whether that should influence the interpretation of that clause is unclear, but it is worth considering.

The DC Circuit goes astray at the start when it distinguishes between "recess" and "adjournment". This separates the jurisprudence of recess appointments from that of the pocket veto, and it is clear that the purpose of Congress in adopting pro forma sessions was as much to prevent pocket vetos as to prevent recess appointments. And it is reasonably clear that the pocket veto was designed as a check on Congress' trying to avoid a veto by adjourning.

Thus is exposed a fundamental weakness of originalism -- historical developments have reversed the power relations between the executive and the legislature, just as the power relations have reversed between the army and the militia. Are we to apply the original understanding when its premises have been undermined, and doing so will empower the stronger branch rather than check it? And if we are not, what prevents a check from becoming a veto?

"You seem to suggest that the "power" of the President under the quoted portion of Section 3 of Article II would permit for calling the Senate into session to address a nominee's appointment."

Yes, I assume that the power to convene the Senate is the power to convene the Senate, as paradoxical as that may appear to you. It would, of course, be entirely up to the Senate what they did once convened. They might well be quite pissed off at a President who undertook such an action.

is convincing. Marty Lederman submitted a form of the case made by the court here and on some level I respect it. But, particularly given long practice and changing realities [GM and rf both allude to this] supporting the other side, a side with an at least reasonable view of things is the appropriate thing to do here.

This isn't just because I support the President politically. I think Sen. Reid's policy of trying to use a gimmick was a bad idea too. It isn't just one side. Brett's appeal to "honesty" is yet again him confusing disagreement on a matter where one side won out, using respectable constitutional interpretation.

As to trying to find someone confirmable, the Rs blocked someone they didn't say was unqualified. They blocked him to force a change of the law itself. They also blocked judges that got support from both sides and eventually getting over 80 votes in some cases. And, the Ds did a bit of that too, so it's not just a refusal to put forth compromise choices.

The "changing realities" btw is not a matter of "so amend the Constitution" ... it is that within the context of the provisions and the structural concerns behind them, the balance and realities changed. This also applies to things like equal protection.

Apparently the last time this was done was in 1948 by Pres. Truman. I wonder what was so "extraordinary" on that occasion to compare to Brett's posit regarding Senate action on a nominee requiring "advise and consent."

By the way:

1. Gerard's comment on the relationship, if any, of filibuster on recess appointments is interesting (as I had suggested in an earlier comment).

2. rfriedman makes a rare appearance but does so once again with an astute comment. And Howard Gilbert has added to the discussion.

McDonald v. Chicago itself noted the changing understandings of the 2A by the 1860s, something that Prof. Amar also speaks about.

Talking about the militia and the 2A sort of changes the subject, but it does show the value of looking at the WHOLE history and usage of constitutional provisions and concepts, a myopic originalism not a good idea.

There is a Circuit split. This will go to the Supreme Court. The administration could "double down" and offer two choices. This decision either goes too far or not far enough to complete its own logic. The case could be remanded back to the DC Circuit to answer the question of whether, using the same analysis it made in the original decision, the appointment of the NLRB members after the end of the 2012 Session, though nominally a Recess appointment, was actually a regular appointment. After the Senate completed all business in the Session without acting on a nomination that had been pending for almost 12 months, did it thereby grant implied consent. If so, the swearing in after the new Senate Session started was legal, resolving the specifics of the current conflict although through a result that nobody anticipated when they started the case.

The issue of Senate inaction may be more of a guerrilla campaign to prevent the regulatory bureaucracy from bypassing Congress than any real issue with the appointments process.

Nearly all cabinet appointments and the vast majority of judicial appointments are confirmed by a Senate supermajority. In contrast, the blockade against NLRB was to prevent Obama from stacking the agency with union partisans to issue pro-union decrees that Obama could not get from even his Democrat super-majority Congress.

Putting aside (for the moment) Recess appointments and filibusters in the Senate, how about that ray of bipartisan sunshine with the group of Senators on C-SPAN discussing an immigration proposal! Hopefully this is a good sign for Congress to get to work.

The magnanimity of Democrats may lead to eliminating an issue that for the Democrats helped to sink the GOP in 2012. It appears that our yodeler may be voicing the spent Tea Baggers ending up with hot water only. Even conservatives are supporting immigration reform, if not from their hearts and minds, as a means of addressing those nasty demographic changes that did them in in 2012.

Hispanics did not make the difference for Obama in any of the swing states outside of Colorado and Florida and did not get close to firing the GOP House or all the GOP state houses.

I would suggest the GOP adopt a far more libertarian position and allow free immigration for everyone who is not a wartime enemy, criminal or suffers from physical or mental illnesses, but deny all welfare state benefits to non-citizens. Basically the standards many of our ancestors from Europe came to America under.

In this way, you flank the Democrats with the immigrant community and undermine their strategy to turn immigrants into another client class of government dependents

Our yodeler prefers a laissez faire immigration policy, it seems, which he describes as libertarian. But perhaps the GOP should adopt a libertine (Ayn Randian) policy to produce more children who might vote for the GOP; but then again, they might not. Oh for those good old laissez faire days of the late 18th and 19th centuries before the progressive era that our yodeler looks back to as the good old days.

Perhaps our yodeler with his economic skills can demonstrate the impact of open immigration on our economy. Frankly, that was sort of an EU goal, wasn't it?

The Recess Appointments Clause is meant to allow the President to make appointments when the Senate is unavailable, not as a means to sidestep Senate confirmation of his appointments.

And here I thought that we start interpretation with the text, not the intention?

(Remember, Article I Section 8 was MEANT to provide Congress with power to address any problem of national scope. We know this from the instructions to the Committee on Detail. And the Second Amendment was MEANT to protect the right to bear arms in order to facilitate the formation of a militia from an armed populace. But people on Bart's side say "no, no, no, the purpose doesn't matter, we're textualists!". Suddenly, on recess appointments, it's purpose rather than text that matters?)

"Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation"

Shag: Our yodeler prefers a laissez faire immigration policy, it seems, which he describes as libertarian. But perhaps the GOP should adopt a libertine (Ayn Randian) policy to produce more children who might vote for the GOP...

Native religious folks (who are disproportionally conservative and secondarily GOP) are the only non-immigrants reproducing above replacement levels. The secular left is dying off just like their brethren in the EU. This is why Democrats are so desperate to bring in Hispanics.

Perhaps our yodeler with his economic skills can demonstrate the impact of open immigration on our economy. Frankly, that was sort of an EU goal, wasn't it?

The EU is far more anti-immigrant both culturally and in government policy than the United States. Instead of a melting pot, the EU has restive Muslim underclass who are far out-reporducing the natives.

Despite nonsense spewed by nativists like Pat Buchanan, immigrants are a net plus for the economy, and a massive plus if educated - so long as they do not become government dependents and if they learn English and adopt the culture. (See Australia and the United States.)

BD: "Subsequent application and stare decisis are common law principles and should have no place in constitutional interpretation."

Mr. W: My God, what kind of conservatism be this?

It isn't.

Conservative jurists like O'Connor will enforce prior erroneous cases simply because of stare decisis, which makes conservative constitutionalism simply an enabler of progressive common law constitutionalism.

BD: "In contrast, the blockade against NLRB was to prevent Obama from stacking the agency with union partisans"

Mr. W: Of course only business partisans can be allowed on that board!

Congress should eliminate the NLRB and claw back its legislative power.

BD: "Hispanics did not make the difference for Obama in any of the swing states outside of Colorado and Florida"

Mr. W: That's a little like saying that codebreaking didn't make a difference in the Pacific theater of WWII except for Midway...Florida was a devastating loss for Romney.

The entire Midwest, PA and NH were in play.

The FL hispanic turnout was about the same as usual and only made a marginal difference in that state.

Romney's problem was a record low turnout of whites.

Oh, and Bart, I think Hispanics were the difference in Nevada as well.

I do not consider NV a swing state anymore. It is a suburb of CA. Even when I projected a 2004 level white turnout, i gave NV to Obama.

Indeed. Stare decisis and respect for long standing practices are eminently conservative principles, what you're talking about seems almost Jacobin...

"Congress should eliminate the NLRB and claw back its legislative power."

Perhaps, but this is unresponsive to my reply. It's hardly outrageous to put former labor counsel on a labor board, especially when the vast majority of appointees in the NLRB's existence have been business equivalents.

"The entire Midwest, PA and NH were in play"

Bart, Bart...That you still consider Pennsylvania to have been seriously in play only reminds us all of how far off your models were. I don't think anyone else seriously thought that. It's gone blue the last five straight Presidential elections and Obama won it by 51/2 points in 2012. Likewise for NH (where Obama won by over 5 1/2 points).

Mr. W: Bart, Bart...That you still consider Pennsylvania to have been seriously in play only reminds us all of how far off your models were.

I do not want to spend 20 posts on this subject, but here are a few post mortem thoughts...

What happened in 2012 was an anomalous heavy urban turnout and a large drop off in white suburban and rural turnout.

Obama won by a net of 5 million votes, but lost to Romney in a solid majority of congressional districts.

The cities carried the winner take all states. If the rest of the country followed the ME and NE allocation of electoral votes by congressional districts, Romney would have won electoral college comfortably.

If we had the same suburban and rural white turnout as in 2004 and 2010 (hardly ancient history) with no change in the 2012 minority turnout (heavy black, so so hispanic), then Romney would have won the popular vote across most of the Midwest, VA, FL and NH; PA would have been close.

The overweening post-2012 Democrat triumphalism ignores that the GOP is in its strongest position from top to bottom since the 1920s - running most state governments, the House and close in the Senate - and Obama retained the presidency with the most successful negative campaign in history by suppressing several million votes.

I cannot think of another election remotely like 2012, where an incumbent president lost votes from his first election, but so destroyed his opponent that millions of the swing voters and GOP base stayed home.

I cannot think of another election remotely like 2012, where an incumbent president lost votes from his first election, but so destroyed his opponent that millions of the swing voters and GOP base stayed home.# posted by Bart DePalma : 12:02 PM

Dumbfuck, Mittens got more votes than McCain. The GOP base voted. There just aren't enough of you nutcases to win national elections.

"What happened in 2012 was an anomalous heavy urban turnout and a large drop off in white suburban and rural turnout."

But how did you not see that coming with the election involving an incumbent and historically notable minority President? I kept telling you before the election to expect strong minority turnout, that's the pattern in Presidential elections and especially likely with a minority candidate running, and demographic changes suggested an increase in some minorities from the last eletion.

"If the rest of the country followed the ME and NE allocation of electoral votes by congressional districts, Romney would have won electoral college comfortably"

Are we sure about that? I'm genuinely curious, but too lazy to do the math ;). I know Romney won more CDs, but remember that in the ME and NE system (a fairly ludicrous one btw) the statewide vote winner gets the 2 non-district EVs.

"suppressing several million votes"

You keep saying this while several folks have several times reminded you that Romney got more votes than McCain. That's bordering on dishonest there.

It's a strange argument anyway, that Obama 'suppressed the vote' by running negative ads, for one thing since his opposition spent more money on such ads (did they supress the vote for Obama?) and for another we've had recent elections which were quite negative but had increased turnout (2004 comes to mind).

"If we had the same suburban and rural white turnout as in 2004 and 2010 (hardly ancient history) with no change in the 2012 minority turnout (heavy black, so so hispanic)"

Bart, this is actually laughable. Who would imagine minority turn out would not be higher in a Presidential election than an off-year one, or in an election with a minority candidate than in one without one? Look back at the older posts, I tried to tell ya several times...

BD: What happened in 2012 was an anomalous heavy urban turnout and a large drop off in white suburban and rural turnout."

But how did you not see that coming with the election involving an incumbent and historically notable minority President? I kept telling you before the election to expect strong minority turnout, that's the pattern in Presidential elections and especially likely with a minority candidate running, and demographic changes suggested an increase in some minorities from the last eletion.

Minority voting did not increase from 2008, white voting went down. My model assumed the minority voting that occurred in 2012 (continued heavy black voting based on Mr. Obama's race and so-so hispanic voting. The anomaly was the falloff in the white vote.

BD: If the rest of the country followed the ME and NE allocation of electoral votes by congressional districts, Romney would have won electoral college comfortably

Mr. W: Are we sure about that?

Yes.

In its report on the VA legislature's consideration of a law allocating electoral votes by congressional district, Huff Post displayed this pretty map of the how a majority of congressional districts when Romney (it was almost identical to the House map) in order to observe that Romney would have won the last election under such a system.

BD: "suppressing several million votes"

Mr. W: You keep saying this while several folks have several times reminded you that Romney got more votes than McCain. That's bordering on dishonest there.

The vote was suppressed. Turnout from 2008 to 2012 dropped by around five million votes and included a lower percentage of voters than in 2004.

The folks who stayed home were primarily suburban and rural whites. African American vote remained high and Hispanic votes only fell marginally.

A comparison between McCain and Romney's total votes is irrelevant, you look at the total pool of likely voters.

The enthusiasm for white voters exceeded that in 2004 and 2010. Thus, they should have turned out in those numbers.

Instead, millions of them decided to stay home rather than voting for Obama as they did in 2008 or Romney as they did for Bush in 2004.

It's a strange argument anyway, that Obama 'suppressed the vote' by running negative ads, for one thing since his opposition spent more money on such ads (did they supress the vote for Obama?)

Yes, 2012 was complete scorch and burn. Obama lost around 4 million votes from 2008. Romney's problem was that the 4 million votes Obama lost stayed home rather than switch to him. This was the Obama strategy.

A comparison between McCain and Romney's total votes is irrelevant, you look at the total pool of likely voters.

# posted by Bart DePalma : 5:35 PM

The "likely" voters are completely irrelevant on election day. All that matters are the people who actually vote, and Mittens got more votes than McCain. That's your pool, and it wasn't suppressed. The fact that you thought more people should have voted only indicates that you were wrong.

Do you have a citation for the claim that the total number of black and Hispanic voters was fewer than the same for each category in 08?

"My model assumed the minority voting that occurred in 2012"

This can't be correct, or else you mistated yourself several times here when you told me Hispanics were going to really stay home for this election and were not going to turn out much beyond 2010. I can look this stuff up in the archives y'know.

"A comparison between McCain and Romney's total votes is irrelevant, you look at the total pool of likely voters.

The enthusiasm for white voters exceeded that in 2004 and 2010. Thus, they should have turned out in those numbers."

This is odd, not only for the reason stated by BB, but for the claim that enthusiasm was high for people who....did not come out and vote...I think your enthusiasm measures were just off.

"2012 was complete scorch and burn"

It's reasonable to think lots of negative ads can supress voter turnout, but 1. this is certainly not always so as an empirical matter (see 2004) and 2. saying Obama's strategy was to 'suppress the vote' seems odd given that certainly Romney aimed to 'supress' the vote for Obama (he spent more on negative ads than Obama).

Obama nominated "people" who Republicans didn't criticize on the merits, but blocked as a means of changing the underlining law. They also blocked judges that eventually, after a long time, was voted by majorities of over 4:1.

Obama. The Constitution says nothing of why the Senate should or shouldn't approve a nominee, or what procedure it must use. But it is clear that, except under extraordinary circumstances, the Senate's approval is necessary for Presidential nominees.

The President who swore an oath to uphold that Constitution, and then sought to circumvent it, that's who was abusive.

is not followed up by him regarding the exception he describes. In an earlier exchange at this thread, Brett raised the matter of Article II, Section 3, which includes the words " ... on extraordinary Occasions ... " but in effect suggested that under the clause in Section 3, in Brett's view, the President could call either house of Congress into session for just about any reason. I pointed out some history of this provision and the last time it was used. Now Brett references " ... extraordinary circumstances ... " but fails to reference the provision, if any, in the Constitution he is referring to. So what are those " ... extraordinary circumstances ... "?

Since the Constitution, according to Brett, provides no standards for how the Senate should act regarding nominees, how might originalism address this? And it is not "approval" but rather "consent" that is required of the Senate regarding nominees. One may consent to a nominee a Senator may not approve of. And what meaning can be given to the "advise" part of the Senate's actions? Must it be carefully considered and meaningful?

Brett continues with his simpletonian view of the interpretation/construction of the Constitution as amended.

Obama. The Constitution says nothing of why the Senate should or shouldn't approve a nominee, or what procedure it must use. But it is clear that, except under extraordinary circumstances, the Senate's approval is necessary for Presidential nominees.

The President who swore an oath to uphold that Constitution, and then sought to circumvent it, that's who was abusive.

Brett suggested the President pick someone who could be confirmed. Query what this means if people qualified & both side agrees (including repeatedly when they finally get around to voting on them) are still blocked.

Query what this means if the person -- as in the case of the NLRB -- isn't even the point. The Republicans wanted the law changed but they couldn't get it changed.

So, they yes abused -- which doesn't merely mean breaking the law -- the system to try to get their way.

Anyway, the "procedure" is provided for. When there is a "recess" -- which includes when the advise and consent power cannot be provided for such as if one senator is there in a phony session for 45 sec. -- the President has the power to make a recess appointment.

The breadth of the ruling here was rejected when William Pryor was up for confirmation while the narrower reason offered has been shown to be constitutional as well. The judges here were wrong. Thus, Obama did not do anything "abusive." The Rs did, though.

If we are going to be literal textualists, the advice and consent clause doesn't as a literal matter say whether the consent must be explicit or tacit, can't one argue that as long as the Senate doesn't pass a resolution expressing non-consent then the clause is satisfied?

But, we have with some the worse of all possible worlds. One meaning of the text is seen as the "obvious" meaning and a selective orginalism, ignoring major changes that might not matter if there is simply only one way to understand the provision in question, but matters quite a deal when there is not.

I had a discussion elsewhere with a couple people who thought it very obvious the draft was unconstitutional, since it is "involuntary servitude." In fact, jury service might be suspect. I explained that the former is not totally unreasonable, but that the history of the term makes it questionable. Not conclusive, mind you, but questionable.

To follow up on the draft as involuntary servitude, then that same logic might extend to service in the "militia," in which case the Second Amendment might be mooted. I'm sure others have made a similar observation.

Check out the Congressional Research Service Memorandum dated Feb. 4, 2013, on "The Noel Canning Decision and Recess Appointments Made from 1981-2013. Perhaps a new post would be appropriate with a link to this Memorandum to discuss past actions from Reagan to Obama on recess appointments.

I have downloaded and printed it and plan to read it in the next day or so. I did glance through it and the small type size will make it slow reading even with a magnifying glass.

As for originalism on recess appointments, keep in mind that originalism began its inroads on constitutional interpretation/construction via Reagan's AG Ed Meese.

The CRS Memorandum noted in my preceding comment is 29 pages in length, with tables taking up pages 4-29. The first three + pages provide narrative. Table1 is basically a summary of Tables 2-11 that list for each President during the period 1981-2009 recess appointment during their terms, separating each President's "Intrasession" and "Intersession" recess appointments. Reagan led the pack for total recess appointments and Obama had the lowest by far. George W. Bush led the pack, running away, with "intrasession" recess appointments. Tables 2-11 provide names, positions and dates of appointments.

Query whether constitutional statutes of limitation/laches might apply to any of these appointments? Presumably Reagan had the advice of AG Ed Meese (aka Mr. Original Intent) in making such appointments.